New Trial for Fed Who Employed Alien

(CN) – A former customs officer convicted for employing an illegal immigrant as a maid can get a new trial, a federal judge ruled, saying it was “overkill” for the government to pursue felony prosecution instead of administrative sanctions.

Lorraine Henderson became U.S. Customs and Border Protection port director for the Boston area in 2003, beating out several other contenders, including Nora Ehrlich. In that capacity, Henderson was responsible for deporting illegal aliens found in the ports of entry that she oversaw. After moving to Boston from Washington, D.C., for the job, Henderson hired a cleaning lady who advertised in her condominium complex. After Fabiana Bitencourt, cleaned Henderson’s Boston townhouse once every two weeks for $75, Henderson recommended the Brazilian worker to Ehrlich. Ehrlich fired Bitencourt in 2005 when she found out that the worker was in the country illegally. When Henderson was due for a promotion three years later, Ehrlich prompted an investigation of Henderson’s relationship with Bitencourt. During a surreptitiously recorded conversation, Bitencourt asked Henderson whether she could help her “to be good … legal.” Henderson repeatedly told Bitencourt that she could not leave the country. “Once you leave you will never be back,” Henderson said. Henderson then consulted with a subordinate at the office for immigration advice on Bitencourt’s behalf. In December 2008, Henderson was arrested for encouraging or inducing an illegal alien to reside in the United States. A jury found her guilty in 2010, after asking for further instruction regarding what “encouraging” and “inducing” meant. The verdict carried a maximum sentence of five years in federal prison. U.S. District Judge Douglas Woodlock ordered a new trial Wednesday, finding that jury received inadequate instructions. “I view the pursuit of this case to have been overkill through the improvident invocation of federal criminal felony process when alternative administrative sanctions more closely tailored to the significance of the misconduct are available and adequate,” Woodlock wrote. “And I am puzzled by the dogged consistency which causes this prosecution to continue.” “The cleaning lady’s employment was not itself illegal under regulations promulgated by the attorney general of the United States,” he added. And the empathetic advice that the defendant gave her cleaning lady about immigration law practices – induced from the defendant as part of the script contrived for an elaborate undercover investigation involving surreptitious electronic recordings into her relationship with the cleaning lady – did not advise the cleaning lady to engage in fraud or commit some other crime.” When giving his jury instructions, Woodlock told the jurors: “One of the great federal judges from Massachusetts, Oliver Wendell Holmes, said that, ‘A word is the skin of a living thought.’ And what you have are the words ‘encourage’ and ‘induce,’ and you have to understand what it is that is throbbing within that skin, what is it that we can say, as a community, we are subjecting people to criminal sanction for if they encourage and induce under these circumstances.” “I observed a number of knitted juror brows, as they absorbed the gravity of the task and the lack of tight and specific direction from the court,” the 50-page opinion states. Within two hours later, the jurors asked for more specific instruction as to the meaning of “encourage” and “induce,” and Woodlock provided them with the words’ dictionary definitions. They returned a guilty verdict shortly thereager. “I am satisfied there is no question that those instructions were erroneous because they were too open textured and did not require the jury to find substantiality to any encouragement or inducement,” Woodlock said Wednesday, relying on 3rd Circuit precedent. “With proper instruction, the jury could readily have found that Bitencourt or an illegal alien in her position would have resided in the United States irrespective of Henderson’s employment and advice, and that Henderson’s employment or advice did not make it more likely that she would continue to reside in the United States,” he added. Quoting ancient Greek historian Thucydides, Woodlock said, “Of all manifestations of power, restraint impresses men most.” Prosecutors must re-examine their motives, he added. “The lessons of proportionate restraint while pursuing measured judgment, in the face of unreasoning outrage, require careful calibration of the level of culpability for modest misconduct,” the decision states. “These are lessons often difficult to accept, master, and deliver. Their application begins in the criminal context with the prosecutor’s charging decision and, if necessary, end with such judgment as the courts are permitted to exercise. In the absence of some greater exercise of restraint by the prosecution in this case, it is necessary to conduct a new trial to assure proper judgment by the court.”